M/S Mohanlal Silk Mills Pvt. Ltd. & ... vs Cce, Thane-I

[Arising out of Order-in-Appeal No. SB/04/TH-I/10 dated 11.01.2010 passed by the Commissioner, Central Excise, Thane-I].

For approval and signature:

Honble Shri M.V. Ravindran, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

M/s Mohanlal Silk Mills Pvt. Ltd. & Arvind Mohanlal Jain Appellant

Vs.

CCE, Thane-I Respondent

Appearance: Shri V.D. Taralgatti, Advocate for Appellants

Shri S. Hasija, Supdt. (AR) for Respondents

CORAM: HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL)

Date of Hearing: 12.06.2015

Date of Decision: 12.06.2015

ORDER NO.

Per: Shri M. V. Ravindran, Member (Judicial)

1. These two appeals are directed against Order-in-Appeal No. SB/04/TH-I/10 dated 11.01.2010.

2. Since both the appeals are directed against a very same impugned order, they are disposed of by a common order.

3. Heard both sides and perused the records.

4. On perusal of records, I find that appeal No. E/566/10 is filed by the appellant M/s Mohanlal Silk Mills Pvt. Ltd. I find that the first appellate authority, in the impugned order was not sitting an appeal on merits of Mohanlal Silk Mills. The impugned order is passed by the first appellate authority on an appeal filed by the revenue in respect of Maharashtra Dying & Printing Works. Learned counsel asserts that the impugned order holding against them is baseless, incorrect and is misdirected. It is seen from the records that the adjudicating authority has confirmed demands with interest and penalty on M/s Mohanlal Silk Mills Pvt. Ltd., which has not been appealed by M/s Mohanlal Silk Mills Pvt. Ltd. This position is made clear by the Ld. Counsel on specific query from the bench. The impugned order is not holding anything against appellant Mohanlal Silk Mills, quite rightly so, as there was no appeal before him on findings against Mohanlal Silk Mills. When the revenue has not preferred any appeal against the adjudicating authoritys order in respect of appellant M/s Mohanlal Silk Mills Pvt. Ltd.; the appeal filed by the appellant before the Tribunal is not maintainable and is dismissed as such as the findings of the first appellate authority are in respect of assessee Maharashtra Dying & Printing Works.

5. As regard appeal No. E/567/10, I find that this appeal is filed by Shri Arvind Mohanlal Jain against the impugned order. Learned counsel was correct in pointing out, that the show cause notice is not issued to the appellant Shri Arvind Mohanlal Jain for imposition of penalty, accordingly penalty imposed on him needs to be set aside. I find that paragraph No. 18 of the show cause notice reads as under:

18. Now therefore, Shri Hakim Ansari, Shri Mohanlal Jain, M/s Hi Tech Processors and M/s Shree Balaji Processors are also required to show cause to the Deputy Commissioner of Central Excise, Kalyan-I Division, having his office at 3rd Floor, Chandrama Building, Valipeer Road, Kalyan (W) within 30 days from the receipt of this notice as to why penalty should not be imposed on each of them under the provisions of Rule 26 of the Central Excise Rules, 2002.

It can be seen from the above reproduced paragraph of show cause notice that Arvind Mohanlal Jain was not directed to show cause as to why penalty be not imposed on him. I also find that the first appellate authority did not issue any show cause notice to the appellant Shri Arvind Mohanlal Jain for imposition of penalty. In the absence of any show cause notice to the appellant, visiting him with penalty under Rule 26 of the Central Excise Rules, 2002 is incorrect and not in accordance with the law.

6. In view of this, I find that the appeal filed by Shri Arvind Mohanlal Jain, needs to be accepted and the impugned order to that extent needs to be set aside.

7. The appeals are disposed of as indicated herein above.

(Dictated in Court)

(M.V. Ravindran) Saifi Member (Judicial)

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